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Exemptions erode Tenn. public-records law

By Rachel Stults
The Tennessean via The Associated Press

NASHVILLE, Tenn. — If you want to know everything about the parolee who just moved into your neighborhood or whether the judge hearing your divorce case has been accused of being mentally impaired, you can’t — not in Tennessee.

Since Tennessee declared government records open to the public in 1957, lawmakers and judges have spent the last 50 years closing some of those records.

Today, there are more than 250 exemptions to the Tennessee Public Records Act.

Advocates of open government insist it should not be so simple to close public records in Tennessee, and they contend that the exemptions are written too broadly, resulting in unnecessary government secrecy.

This year one measure proposed to close records identifying Tennesseans licensed to carry handguns, but it was stopped after the House speaker intervened.

“Any special interest who has a friend in the Legislature can get records closed fairly easily,” said Frank Gibson, executive director for the Tennessee Coalition for Open Government. “It’s a slippery slope — you close one piece of information on a file, and then two years later you close something else.”

Tennessee, compared with other states, falls in the middle in terms of the way it closes public records, said Charles Davis, executive director of the National Freedom of Information Coalition.

“I think Tennessee is in a broad category of states that are kind of middle-of-the-pack,” he said. “They’re not bad laws by any stretch of the imagination. They suffer from some systemic flaws, they suffer from broad, amorphous language that’s been interpreted to death by the judiciary. I think Tennessee is in a bit of a reform in looking at the law, and this is why: Everybody could stand to tighten their language when it comes to exemptions.”

Florida has nearly 1,000 closed records, Davis said. While the number might seem high, he said, Florida should serve as a model for other states. That’s because each exemption is “microscopically narrow” and specifies the exact part of the record that is being closed from public view. Specific criteria must be met in order for Florida records to be closed. They must be clearly marked and a “sunset provision” mandates that the exemptions be re-evaluated after seven years, Davis said.

By contrast, in Tennessee, whole records are closed when only a piece of information should be shrouded in confidentiality, Gibson said. And Tennessee’s exemptions are not categorized in any specific fashion, making it difficult for the public to clearly understand what they are allowed to see, Gibson said.

Some exempted records are explicitly listed in the public-records act, while others are scattered throughout the 70-plus chapters of Tennessee code.

In recent years, exemptions to the open-records law have passed at a rate of one or two a year, Gibson said.

Nonelected entities
Some states are divided about what the public should know.

For example, in Washington, Oklahoma and Kentucky, parole records are open. In Tennessee, not only are certain parts of the records closed, but the parole board has the ability to determine what stays confidential.

“Much of that has to do with safety risk to the public, to the staff or to the inmate himself,” said Jack Elder, a spokesman for the Tennessee Board of Probation and Parole.

Parole reports might necessitate confidentiality because of parole hearings where a victim, a victim’s family or even the inmate’s family gave confidential testimony or said they were opposed to an inmate’s parole, Elder said.

But that kind of authority concerns Gibson, who said too often power is handed to entities that haven’t been elected by the public.

“That is an example of how it’s too easy to close things,” Gibson said. “That is something the Legislature should [decide].”

Gibson remembers an incident in West Tennessee where two convicted murderers on a work detail escaped and went on a killing spree. An attempt to see why the inmates were allowed outside was met with a closed record.

“Records might contain information where that inmate has perhaps been a snitch, so if you made that public it might be putting an inmate at harm,” Gibson said. “But in this case it was used to protect the government from having to explain why two people got outside prison walls where they shouldn’t have been and people died as a result of them escaping.”

Privacy, safety concerns
Generally, it’s accepted that records that disclose very personal financial or medical information will be closed, said Lucy Dalglish, executive director of the Reporters’ Committee for Freedom of the Press, based in Virginia.

If it’s a matter of national security or trade secrets, those closed records will receive very little pushback as well, she said. And it’s typically understood that law enforcement officials need to keep a part of their investigation secret while the case is open. In Tennessee last year, additional privacy safeguards were extended to include personal information in a law enforcement officer’s personnel files.

The bill’s sponsor, Rep. Curry Todd, R-Memphis, said the bill’s intent was to protect police officers and their families. He worried that too many criminals were looking up information about where officers lived, where their wives worked or where their children went to school.

“There weren’t any laws to keep it from happening,” Todd said.

While some records are closed to ensure safety, others are sealed in the name of fairness.

For example, complaints of “judicial disability” in Tennessee — that a judge was using drugs, drunk or mentally incompetent in a court proceeding — are confidential.

The reason is to protect judges from accusations from those who may have felt scorned in the courtroom, said Steve Daniel, chief disciplinary counsel of the Court of the Judiciary, which investigates complaints against judges and determines whether disciplinary action is necessary.

“Say someone goes into court, loses a case, and makes that sort of statement,” said Daniel, a former judge. “If they make a complaint to us, we will obviously be in the situation where there’s a great possibility those are motivated by a number of reasons other than the judge actually having a physical disability.”

If a judge is removed or reprimanded, a statement of facts is filed with the Tennessee Supreme Court including what launched the investigation, Daniel said. The action is then made public, he said.

Hard-to-explain exemptions
But some public-records exemptions aren’t always easy to explain.

One Tennessee law allows the state to gather nursing home resident morbidity and mortality data to “aid enforcement of quality care standards.” But the law also requires the information to be kept confidential “and not subject to public inspection.”

“That’s insane,” Dalglish said. “Consumers should be able to look at any information in giving them assistance in evaluating whether a nursing home licensed by the state is doing a good job.”

Katherine Moffat, a spokeswoman for the Tennessee Health Care Association, which represents almost 300 long-term care facilities including nursing homes, could not immediately explain the need for the exemption, saying more time and resources were needed to analyze it.

Andrea Turner, a spokeswoman for the Tennessee Department of Health, could not address the law and said no one was immediately available to explain it.

Educating the public on the importance of open records is one of the biggest challenges, Gibson said.

“The problem is, citizens do not seem too concerned until it is an issue that involves them,” Gibson said. “If it’s emotional enough, like the gun issue, you’re able to argue, ‘Hey, there’s states giving gun permits to convicted felons — are you sure you want to close this? But a lot of time, those arguments don’t get made.”


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